Comments on: A Civil Liberties Thought Experiment

By: landerson

landerson — Tue, 16 Oct 2007 20:29:01 +0000

Exactly. The fourth is not the only ammendment being compromised. Please read “On a Hill They Call Capital” by Matt Carson. I recently read it and am ready to join the “revolution” myself.

By: A Second Hand Conjecture » A FISA Gedankenexperiment

A Second Hand Conjecture » A FISA Gedankenexperiment — Mon, 15 Oct 2007 20:55:25 +0000

[...] Doug Mataconis seems to think so: The [Putin] hypothetical, though, is slightly different [from the Rammage hypothetical]. The CIA is eavesdropping on Putin’s conversation not as part of a law enforcement investigation, but as part of an intelligence gathering operation. During the course of that investigation, they discover that a foreign target (and Putin is only one example, let’s say it’s bin Laden, or Mahmoud Ahmadinejad, or the head of Chinese Intelligence) is communicating with someone in the United States. Should they be required to get a warrant to listen in on a conversation between someone in a foreign country and someone in the United States, especially when that conversation originated in a foreign country ? [...]

By: Chepe Noyon

Chepe Noyon — Sun, 14 Oct 2007 15:01:21 +0000

Part of our problem here is the old wall we have put between the CIA and the FBI. That wall had two parts: domestic vs foreign and espionage vs criminal. Our problem is that we refuse to define terrorism as a form of crime; instead we treat it as sometimes criminal, sometimes military, sometimes espionage. With such a confused characterization of terrorism, it’s no wonder that we have a confused response to it.

This confusion leads to especially repugnant results when the government claims immunity to civil suits because such suits would reveal state secrets. It seems to me that we should clearly define the legal status of terrorism as a criminal activity and then apply the well-developed standards of criminal law to deal with it. Our current mishmosh of approaches just begs for abuse.

By: Stephen Macklin

Stephen Macklin — Sun, 14 Oct 2007 13:41:12 +0000

I think the analogy to a wiretap warrant in a criminal investigation works well enough. In each case the government agency involved is legally monitoring the calls of their target.

I’m not so sure that the fourth amendment exclusionary rule comes into play either regarding the CIA. The CIA does not do domestic law enforcement. Any information they gather on a domestic party to a foreign target’s phone call could only be used if and when they passed that information to domestic law enforcement – I’d assume the FBI.

Then the fourth amendment would come into play and the only use the FBI could likely make of the CIA’s information is to use it to convince a judge to approve a warrant to tap the domestic target.

When you throw FISA into the mix, I believe that would allow intelligence agencies to get a warrant to tap a domestic target with foreign intelligence value. Any intelligence gained under that warrant should certainly be admissible in court.